Vote NO on Section 702 Surveillance Expansion and Reauthorization

This week, the House of
Representatives will vote on a stand-alone measure to enact a four-year reauthorization
of Section 702 of the Foreign Intelligence Surveillance Act, which is set to
expire on December 31, 2017. The bill is a modified version of the FISA
Amendments Reauthorization Act of 2017 (H.R. 4478), which was reported out of the
House Intelligence Committee on a party line vote, with at least four members voting “no” because of privacy
concerns. That
bill was strongly opposed by privacy groups and by technology companies. The modifications to this bill are
wholly insufficient to address the many concerns it raises. Although its
proponents seek to sell the bill as a reform measure, it contains no meaningful
reform of Section 702, and in several respects, it expands surveillance
authorities and codifies the worst intelligence community practices rather than
reforming them. As a result, this bill is worse than a clean reauthorization
with a sunset. The FISA Amendments Reauthorization Act:

• Makes NO meaningful reforms to
  protect Americans’ privacy.
• Codifies and expands “abouts”
  collection. “Abouts”
  collection is part of upstream surveillance where the government collects not
  only communications that are “to” and “from” a target, but also those that
  merely reference or are “about” a target. This type of collection results in
  the collection of substantial quantities of
  Americans’ communications.
  The FISA Court has found this type of collection raises serious constitutional concerns
  because it is so privacy-invasive and has forced the government to shut it down twice, most recently because the
  government consistently failed to comply with mandatory minimization procedures
  to protect Americans’ privacy. This bill would not only explicitly ratify this
  practice, but there is a risk that the government could interpret the bill’s
  language to expand such collection, by permitting unintentional “abouts”
  collection and collection of communications that merely reference a target,
  such as mentioning a target’s name, but that do not include a target’s “selector”
  such a phone number or email address.
• Codifies backdoor searches for
  Americans’ communications. The
  bill would write into statute the current practice whereby the intelligence
  community (FBI, NSA, CIA, and NCTC) can warrantlessly search for and access
  Americans’ communications that have been collected incidentally through Section
  702 surveillance. The FBI even routinely conducts these searches for Americans’
  information before initiating investigations, when they have no factual basis
  for believing the American has been engaged in wrongdoing. These searches can
  also be conducted to open or further investigations that have nothing to do
  with national security. This bill pretends to address this problem by providing
  that the FBI has the “discretion” to seek a warrant before accessing Americans’
  information, but this provision would not stop, or even meaningfully limit,
  these warrantless searches or the use of warrantlessly accessed communications
  in run-of-the-mill investigations. Instead, the bill would sanction that
  practice.

Of all of the bills that have been
debated, the House Intelligence Committee’s bill is by
far the worst option and the modifications that have
been made to the bill fail to adequately resolve its significant problems. OTI
does not support a clean reauthorization of Section 702, however, any bill that
makes no meaningful reforms and that codifies and expands “abouts” collection,
as this bill does, poses an even greater threat to Americans’ privacy and civil
liberties than would a clean reauthorization with a sunset. It is no surprise that the bill
raises so many concerns: it received no meaningful public debate. When it was marked up in
committee, there was no discussion of how the bill would impact Section 702
authorities. On the other hand, while the House Judiciary Committee bill does
not address all of the privacy community’s concerns, it does make some important and meaningful reforms and was subject to robust public
debate in Committee, where was approved by an overwhelming bipartisan vote.

Members should vote “NO” on the
House Intelligence Committee’s bill and demand that Republican and Democratic
leadership allow a vote on a real reform measure.